WARNING The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

( a ) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

( b ) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a) .

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)( a ) or ( b ), the presiding judge or justice shall

( a ) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

( b ) on application made by the victim, the prosecutor or any such witness, make the order.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Ontario Court of Justice

Date: July 5, 2021 Court File No.: Toronto, College Park Information Number: 4817-998-19-75001742

Between: HER MAJESTY THE QUEEN — AND — P.H.

Before: Justice J. W. Bovard

Heard on: February 24, 25, 26; March 23, 26; May 11, 13, 2021 Reasons for Judgment released on: July 5, 2021

Counsel: Ms. E. Moore and Ms. C. Jenkins, for the Crown Mr. R. MacDonald, for the accused P.H.

Bovard J.:

Introduction

[1] The police charged Mr. H. with two counts of sexual assault under s. 271 of the Criminal Code. They allege that Mr. H. assaulted the complainant on November 2 and on November 9, 2018.

[2] The defence argues that based on text messages between the parties and on the complainant’s testimony, the parties were involved in a consensual romantic and intimate relationship.

[3] Further, the sexual activity that forms the subject matter of the offences before the court was consensual.

[4] The complainant denies this. She says that Mr. H. forced her to have sexual relations with him. The defence is misinterpreting what she said in the text messages. The defence argues that the complainant’s evidence is not credible or reliable.

[5] The text messages were the subject of a s. 276 application, after which I allowed some of them to be adduced in evidence. The defence used them to cross-examine the complainant.

Issues

[6] The issues are the credibility and reliability of the complainant and whether the Crown proved the charges beyond a reasonable doubt.

The Evidence

[7] The complainant testified that she met Mr. H. over social media. He sent a message to her on Facebook around the middle of October 2018. She did not know him before this. He asked for her assistance because he was a newcomer and they had mutual friends. He told her that he was moving from Montreal to Toronto at the beginning of November 2018. He wanted to move into a bachelor apartment. He asked her to help him furnish his apartment. She said that she would only help him for a couple of weeks.

[8] He sounded very frustrated. She thought that he was having trouble meeting people. His conversation was centred on his loneliness. They made a date to meet at a café a few days later, the day before his birthday. She bought a birthday card and a “magnetsport” for him. He told her that she was the first person to congratulate him. She pitied him. He asked her to give him an orientation to Toronto.

[9] A week later, they met at the Eaton Centre. He wanted to “change the size of his shoe”. She told him about a Halloween party and other events where he could go and make friends. She told him that she could buy a ticket for him at a discount.

[10] He decided to go to the Halloween party. Her father gave them a ride to the party. She told him to go dance and find a girlfriend.

[11] She also invited him to join her and her friend at a Halloween function on Church Street. He agreed.

[12] They sent each other text messages daily. She responded to his messages because she heard that he was alone and did not have anyone to talk to. These messages are among the ones that she disclosed to the police.

November 2, 2018 (November 4, 2018)

[13] There was confusion regarding the date of the November 2, 2018 charge. The Information lists the date as November 2, 2018. The complainant testified that the incident occurred on November 4, 2018. In any case, the Information charges that “on or about November 2, 2018”, Mr. H. sexually assaulted the complainant. November 4, 2018 would be “on or about” November 2, 2018, so this discrepancy is not germane.

[14] The complainant testified that Mr. H. moved into an unfurnished apartment on November 4, 2018. She visited him there that day.

[15] Their plans on this day were to get a car to drive around Toronto for one or two hours so that she could show him various places.

[16] He picked her up at her home in the morning and they went to IKEA so that he could pick up some items there. Then they were going to have lunch somewhere. She had a family party to go to later that evening.

[17] She thought that he was going to buy a bed. They had lunch at IKEA and wound up staying there until about 4:00 PM.

[18] They did not have any physical interaction at IKEA. She had told him that she had just finished a relationship and she was taking some time before starting another one. But she also said that she told him that she “started date …. I have a date and I’m, starting on someone". [1] She thought that he had a crush on her, but she was not going to “consider him”.

[19] They packed the car with Mr. H.’s purchases and decided to drop off his things at his apartment. They got to his apartment at around 4:00 PM. I note that she said that they left IKEA at about 4:00 PM. They planned to go to another furniture store afterwards. After they finished at the furniture store, they were going to go for a walk in a park close to the furniture store.

[20] Although he did not ask her, she thought that he expected her to help him unload the car and carry his items to his apartment. She did not want to help him. She thinks that he got angry with her because of this. While he was busy with this, she looked around the apartment.

[21] After he moved his things into the apartment, he offered her tea. She agreed. She took off her jacket. He put on the kettle.

[22] While they were talking in the living room, he asked her for a hug. She thought that he wanted to show appreciation to her for her help. She gave him a hug. He grabbed her hard and started kissing her. He told her that he should kiss her and that he could not control himself. He told her that he was angry, too.

[23] She was shocked. She tried to push him back. She asked him what he was doing and told him to stop it. She turned her face so he could not kiss her. Then he stopped. He went to the kitchen to turn off the kettle.

[24] While he was doing that, she asked herself where she had put her bag. She wanted to leave but she could not find her bag. Her mind was “completely blank”. Her knees were locked. She was frozen and could not move because she was in shock.

[25] He went back to her and grabbed her again. He grabbed her shirt and pulled it down, just off her right shoulder. He repeated that he did not have control over himself. He was angry. She turned her face and put her hand in front of her face to stop him. He moved her hand away and tried to kiss her face, neck and lips. She told him to stop, but he would not.

[26] He put her on the floor face up. They were between the entrance of the kitchen and the bathroom.

[27] He was on top of her. He “took out my shirt, my top, I mean”. [2] Just before he put her on the ground, she could not move her legs. Her knees were locked. She tried to hit him, but it did not help.

[28] She asked him what he was doing. They were supposed to go out. He just said that he was angry and could not control himself. He was pressing her chest. She tried to change positions but could not.

[29] He tried to put his hand in her pants. She tried to stop him by putting her right hand on her pants and “to stop him as much as I could [indiscernible] at least that time”. [3] He increased the pressure on her chest with his right hand. She tried to push up his fingers, but he kept increasing the pressure. It was hard for her to breathe. She took her right hand off her pants and grabbed his wrist with both hands, trying to push him back. Then he started to put his left hand in her pants.

[30] She “took [her] hands to his face”. She wanted to say something but could not. He was “pressing his teeth and he was very angry, and he was pushing his, his facial expression was very angry”. [4]

[31] She told him that they did not know each other. She repeated that they were supposed to go out. She asked him to go out and talk. He “really looked like out of it now”. [5]

[32] She was afraid that he was going to force her to have sexual intercourse. She thought that she would not be able to stop him. She told him that she did not want to have sex before being married because it was very important to her and in her culture to wait until she was married.

[33] She told him to go find someone on Tinder, but not to touch her body. He said that he was not interested in “those”. She was trying different strategies to stop him. But he was “finding a way to put his hand inside my pants”. [6] She could not move because he was on top of her. She struggled, but in vain.

[34] She passed out while he was pressing her chest. She did not know how long she was unconscious. But it was long enough,

so that he took my pants, he took my underwear, he took his clothes, and when he was taking my bra I was getting back to, to, to my body. And he go down between my legs and started with oral sex on me. [7]

[35] She put her hand on her vagina to stop him. She also turned onto her left shoulder and pressed her legs together to stop him and keep him away. She told him repeatedly to stop, but he continued. He turned her on to her back. Her knees were bent. He bit her left knee and pressed it and opened her legs. He resumed oral sex on her. With his finger he was, “tapping to my like entrance of my vagina”. [8] She had his wrist and she pushed back to stop him, but he was too strong.

[36] She told him a couple of times “virgin, he said that, be relax, I don’t have anything to do with your virginity”. [9]

[37] The stubble on his face irritated her vagina. She told him that it hurt.

[38] He turned her on to her stomach and got on top of her. He put his penis between her legs and “was like pushing, putting, like moving, moving that forward and backward, rubbing himself to, rubbing his penis to my vagina ….” [10] . He did not penetrate her.

[39] He also bit her right hip or her back. [11] She told him again that she was in a lot of pain and she wanted him to stop.

[40] He stopped and went to the bathroom to get a lubricant. He came back to her and “added lubricant to, to like continuing what he was doing. I was hopeless to stop this person”. [12]

[41] She begged him to stop. He said that he was not satisfied yet and that he had to be satisfied. He asked her to fellate him. She agreed because she thought that if he ejaculated, he would be satisfied and “this nightmare is going to end”. [13] It was disgusting but she did not feel that she had any other choice. She thought that if she did not fellate him “that he going for penetration or doing as much as he can and I just wanted to stop things”. [14]

[42] She stopped when he was getting close to ejaculating. He pushed her to the ground and got on top of her and ejaculated on her “chest area and my top and it also came to my hair”. [15] She said previously that he had taken off her clothes, so I am not sure if by “top” she means something else, like the top part of her body. Is not clear what she means.

[43] After he ejaculated, he cleaned her “top” with a shirt. This ended the first part of their sexual encounter on this day. She did not consent to any of it.

[44] She was in physical and emotional pain. Her back hurt due to the struggle that they had for half an hour.

[45] Next, he went to sleep on the ground to her right. She asked him what he had done. He told her that now that he has been close to her the ice was broken.

[46] For the next two to three hours they talked. She was disgusted by what he did. He did not accept responsibility.

[47] At one point, she went to the bathroom to clean her hair and body. She saw that her lips, face, nose and chest area were “like burned”. She was not sure that was the right word to describe it, but it was “all irritated and was all red”. There was a bruise on the left side of her neck. [16] She had a bruise on her knee as well.

[48] They talked in front of the bathroom mirror about the marks on her body. He suggested that she take a hot shower to deal with the irritation to her body. She told him that she did not want to take a shower “because I don’t want to wash all on my head …. He thought my hair was very dirty”. [17] However, on page 21 of her statement to the police she told them that they had a shower. The excerpt from her statement is as follows:

Officer Petrie: How did your body get all red? The Complainant: No because biting, he was kissing. And I was like how – if I go back home like this you don’t understand, something will happen to me. And then we went for shower and we took sh- shower and then he took me back home. Officer Petrie: Okay. Did you shower together or separate? The Complainant: Yeah, Together. Officer Petrie: Showered together. Were you okay with that? The Complainant: I wasn’t thinking about it. If it’s okay or no.

[49] She testified that in Farsi there is only one word to say that one took a bath. She did not know the word for tub so she used the “closest word I could think of at the time”. [18]

[50] She said that she corrected this point with the police after she reviewed her statement. There is no indication of this in the statement, however.

[51] He said that they could get in the bathtub. Her back hurt a lot so she thought that it would be helpful. She also wanted to clean her body because it was dirty. She did not think about whether it was okay or not to get into the tub with him.

[52] He drew the bath and they got into the tub. She cleaned off the ejaculate that was \ on her body. They talked. Their bodies did not touch. She was careful not to touch him. She thought that since he had done what he wanted, getting into the tub with him was nothing. Everything was done, “for hours he was giving me those bullshits. And I was tired of arguing with him”. [19]

[53] When she got out of the tub she dried herself with a towel. She got dressed and they talked some more. Then he took her home. She said that she got home at around 10:10 PM or 10:20 PM. She also said that it was almost 9:15 PM.

[54] The Crown asked her why she remained in the apartment for so long after the incident and why she stayed in touch with Mr. H. afterwards. I find it hard to paraphrase or summarize her answers. Therefore, I will quote from her testimony.

[55] She explained that she stayed at his apartment for so long,

Because I wanted to understand how is that possible, something like that. When he was ejaculated and everything was finished he was not angry anymore, and when he said that was ice break and now he, he said he now feels very relaxed. He didn’t have sex for a long time and he really needs sex. And I wanted to hear his defence. And we have like circular conversation again and again. I wanted to, to express my, my feeling and what he did to me, but he was not listening and saying things over and over quite [indiscernible]. I started saying him “Why you didn’t stop?” He said, “I didn’t have control over myself.” I told him “Why you were also saying you were angry, why — what you were angry at? Was very angry at me?” He’s like “No. I was angry from Ikea. [20]

[56] After this incident they continued to have contact with each other for a couple of hours a day over the telephone and through text messages. They sent text messages for about two hours and spoke on the telephone for two hours. One day he did not have internet, so they only spoke on the telephone.

[57] After this incident she felt very intimidated and “afraid what’s in his mind”. She thought that the conversations that they had in his apartment during this incident were extremely concerning because they argued a lot and he would not accept responsibility for what he did.

[58] After the incident,

…. my thought, my emotion all change after the first incident. However, because he was — he also was, he was intimate, intimidating me and forcing me to accept dating him, I, I decided to offer him — “I, I still have some feeling for you, I still, I’m still feel pity for you, but just stay away from my body. Stay away from my bed. Stay away from my reputation. And I promise you everything can go back to like our just friendship if you stop playing to those games to me. Stopping accusing me my culture, my personal short” — he was every day... [21]

[59] She kept in touch with him after the incident, between November 4, 2018 and November 9, 2018, because she had a ticket to go to a movie that cost $40. He paid for it but she had it. It was for November 17, 2018. She thought that he would get angry if she asked him not to go to the movie. She thought that he would overreact since he still did not accept his guilt for what he did. She wanted to keep things as they were. She was trying to express herself.

[60] She hoped that he would,

…. realize what he’s saying is not fair and brutal. But, but at the same time I, I was thinking to keep the connection until the cinema day. So after that I could block him. I could find a way to report him and find, file a complaint. But just because of that ticket and the whole cinema crap that I have to my friend, I was thinking it’s better idea to just try and find a solution for, for that attack. [22]

[61] She was trying to “calm him and keep the connection and not been very at the roots of him, making him angry ….” [23]

[62] The Crown asked again why she spent a couple of hours a day communicating with Mr. H. between November 4, 2018 and November 9, 2018. She said,

The first one, on the Monday when I have called him and I expressed myself, I told him that I want to keep my faith, I don’t — I want him to stay away from that and not, not be intimidated to, to that. And I again told him about my family, my personal choice, and he doesn’t have the right to attack me over and over for, for my choice to be virgin, and it’s not up to business. I have my culture. And I — because it was not — because I did this conversation on Monday, I gave him time, I told him that I don’t want to [indiscernible]. Take your time and we’ll talk tomorrow. [24]

[63] The next day she did not get the response from him that she wanted. He told her that he thought that she was joking. She told him that she expected an apology the next day.

[64] She spent so much time talking to him between November 4, 2018 and November 9, 2018 because he was not accepting that he sexually assaulted her. It was very important to her that he accept responsibility for this. Every time that she called him he had another excuse why he should not apologize.

[65] She wanted to see him in person because she thought that it was a better way to communicate than through texts or over the telephone.

[66] She agreed to go to Winners with him to buy curtains. There was a Starbucks nearby where they could go and talk afterwards. She thought that if he apologized they could resume their friendship, “And what he did something wrong, he, he just did a mistake, he was not thinking about the consequence, maybe he didn’t – was not fully aware for that, we have all this conversation and I, I wanted to hear his apology ….” [25]

[67] If he apologized, she would still be there for him to help him and be the friend that she was before.

[68] It was important for her that he apologize because it would mean that he would not say bad things about her to others. He would stay away from her “and from my dating at that, at that time with another person”. [26] He told her that if she did not date him, he would “put me in trouble”. [27]

[69] He told her that it was her idea to have sexual intercourse in his apartment. He was upset that she did not want to continue the relationship. If she did not date him he would tell everyone that he had a one-night stand with her and tell them all that they did.

[70] If he apologized it would mean that she would not have to worry about him attacking her physically or her reputation.

Summary of the complainant’s reasons for staying in touch with Mr. H. after the November 4, 2018 alleged assault.

[71] The complainant gave several reasons for staying in touch with Mr. H. after the alleged assault on November 4, 2018. It will be helpful to list them here.

1. She wanted to understand what happened.
2. She wanted Mr. H. to apologize.
3. She wanted him to accept responsibility for what he did.
4. She hoped that he would realize that what he was saying to her was “not fair and brutal”.
5. She wanted to express her feelings to him about what happened.
6. She wanted Mr. H. to explain why he did not stop what he was doing.
7. He was intimidating her, trying to force her to date him.
8. She still had feelings for him and pitied him.
9. They could go back to being friends if he stopped playing games, accusing her and her culture, “my personal short”. (Being friends again seems inconsistent with number 7.)
10. She wanted to stay in touch with him until after they went to the movies together with the pre-paid ticket that they had. After that she would find a way to report him and file a complaint. (This seems inconsistent with going back to being friends in number 9).
11. “because of that ticket and the whole cinema crap that I have to my friend, I was thinking it’s better idea to just try and find a solution for, for that attack”. (I am not sure what this means).
12. She was trying to “calm him and keep the connection and not been very at the roots of him, making him angry ….”
13. She wanted to keep her faith and for him to stay away from that and “not be intimidated to, to that”. (I am not sure what this means).

[72] In some of her reasons there is a theme that she wanted to understand what happened, express her feelings to him, and for him to apologize and accept responsibility.

[73] But I see inconsistencies in the other reasons. She said that she believed that it was possible for them to be friends again, but at the same time she accused him of forcing her to date him and she was going to try to find a way to file a complaint against him.

[74] The Crown showed her one of their text messages (pages 629, 630 of 788 – screen shot 630). The complainant sent it the night before the second incident on November 9, 2018. She told him that she missed him.

[75] The reason that she gave for saying this was,

Since after the first incident he was repetitively saying that he’s missing me and he wants to meet me again, but I don’t give him time and I react childish and I’m hiding myself from him. I’m not going to heear (sic) him. So I was saying same thing that he was repetitively saying to me. I was telling — so I’m generally in our conversation I was telling him that I also, ‘I also want to meet you again.’ I, I was also asking, checking if [indiscernible], like if he has like, for example, furnishing [indiscernible] — I was following up those things for show him that I’m still the same person. [28]

[76] This evidence does not explain in a way that I can understand why she told him that she missed him. In evaluating this evidence, I do not draw any adverse conclusions regarding her credibility from the fact that she told him that she missed him, but I cannot help but remark that she did not answer the question in an understandable way, for me at least.

[77] Apparently, the Crown had the same problem because she asked her again why she said that she missed him. Her answer was quite different this time.

[78] She said that it occurred to her that he was not apologizing because he did not know about, or misunderstood, the Canadian law regarding consent. She was eager to meet him that day: “And also that’s how you have conversation and if – in my understanding it look like – so he, he was – he was showing collaboration”. [29]

[79] A sign of an apparent disconnect between the Crown’s questions and her responses is evident. This is underscored by the Crown asking her if she was able to understand her questions when the interpreter interprets for her.

[80] Again, I have a hard time paraphrasing her answer. I am not sure that I understand it and I may get it wrong. Consequently, I rely on the transcript.

I didn’t realize that, your question what they are, when I was on the phone with, with the witness assistant, I realize that I didn’t understand how to answer the question. For example you asked what was my feeling, I, I, I do not understand you mean to ask — describe my feeling. I thought I answered the question appropriate.

Q. Okay, so...

A. First you were saying when you are repeating the question I think I understand that was not the answer you were looking for. [30]

[81] I asked her whether she understood the interpretation. She said “No, she — I was understand more the word she said parts about feeling, but I didn’t realize that when someone say to me that, for example, what was your feeling and I’m saying for example my my thought [indiscernible] is not feeling. So it was a conceptual problem not, not linguistic.” [31]

[82] I do not understand her evidence. The Crown asked her why she said that she missed Mr. H., not about her feelings. Consequently, I cannot determine what she said about why she said that she missed him.

[83] Regarding another issue, the complainant said that she was very frightened for her physical safety and for her reputation. She felt humiliated. He was blaming her. She also felt terrible about herself.

[84] The Crown showed her text messages from page 641 of 788. They were sent at 9:36 PM on November 8, 2018, four days after the alleged assault on November 4, 2018.

[85] In the message the complainant tells Mr. H. that she loves him. The Crown asked her why she told him that she loved him. She gave a long rambling answer that takes up the better part of pages 42 – 45 of the transcript of February 25, 2021. It is quite confusing, but she appears to be saying that she meant that she felt platonic love for him.

[86] In cross-examination, she explained that she said that she loved him “like sympathy, like a human, like a person that I was helping people”. [32]

[87] Defence counsel questioned her about a text message that she sent at 10:45 PM on November 4, 2018 after Mr. H. dropped her off at home. It shows a woman in a bikini in a Santa hat. Defence counsel asked her why she sent that to him. Her response was long and rambling. It covers page 21, lines 13-34 to page 22, lines 1-19. I think that she was saying that she sent it in order to placate him so that he would not ruin her reputation.

[88] Defence counsel pointed out to her that in the text messages there is no evidence of him threatening to ruin her reputation. He questioned her about another text message that she sent to Mr. H. at 12:06 AM, November 5, 2018, soon after he had dropped her off at home. It shows a happy couple where the woman is kissing the man.

[89] Her explanation for having done this is another very long, rambling statement. It spans from page 25, lines 29-34 to page 27, lines 1-22, with a few questions from defence counsel interspersed here and there. Try as I might, I could not find an answer to defence counsel’s question in her response.

[90] These are examples of the complainant’s predilection for giving excessively long, winding answers to counsels’ questions and going off on tangents of her own rather than sticking to the questions asked. There may be good reasons for her doing this, but the consequence of it is that often what she said did not respond to the question and her answers were confusing.

[91] Defence counsel asked her about an emoji that she sent to Mr. H. shortly after she left his apartment on November 4, 2018. It depicted “partying eyes, the love eyes”. Again, I found her answer difficult to understand:

As I said over and over I was scared of this animal and the reason came to my mind was accepting what he wants otherwise the consequences would be even worse and based on this conversation I was totally accepting dating him but shortly after he was turning that to something more sexual and I just said that I’m drunk so I could keep this excuse available for myself that I was arguing with you at the place and then I was drunk and then I said that, and then – but because I accepted that, I’m going out with you but then talking to him the reasoning why I don’t want to date this person. He didn’t have anything I can achieve – I can achieve more positive in my opinion nothing here is not personality nothing... [33]

[92] Again, I do not judge her having sent the emoji, but her answer is indicative of an oft repeated tendency to answer counsels’ questions in a manner that appears evasive. Sometimes, she does not answer the question. Moreover, her answers are often very difficult to understand. This causes me concern regarding the reliability of her evidence because it shows a marked inability to recount the events in a manner that is understandable, to me at least.

[93] She agreed that on November 4, 2018 Mr. H. did not have a bed in his apartment. Defence counsel asked her about a text message that she sent to Mr. H. on November 4, 2018 in which defence counsel puts to her that “it looks like you’re encouraging him to get a bed”. Defence counsel tells her that she said, “I appreciate it, lol, if you want to fix the bed until I come back”. [34]

[94] I looked at the text message as it was depicted in Mr. H.’s affidavit for the stage one proceedings regarding the s. 276 application concerning the text messages. It says “If you want to fix the bed until I come back (apparently a smiling emoji) Why did we do such a thing? (What a thing we did) (apparently a smiling or laughing emoji) I got smashed.

[95] She responded that she was going to “meet her date and I suggest to him to get him – and get him busy with fixing the bed until I come back on my date”. [35]

[96] I appreciate that defence counsel may have been trying to intuit the subtext of the message in putting the question to her as he did, but although his rendition of the message is similar, it is not exactly what the message said. He seemed to already have the bed.

[97] Based on the laughing emoji, defence counsel asked her whether she was referring to their sexual activity without a bed being funny. She said that she did not think that it was funny. He asked her why she sent the laughing emoji. She said “I over used that emoji”. She shows her anxiety by laughing. [36]

[98] She explained further that,

I was just sending – like all that I and probably – I don’t really know what the assume out of that hugger and these are for the morning of November 5 I didn’t want him to get more angry and I might plan was – keeping him calm and talking to him and expressing myself somehow when we are going out, you know, manageable set up and I never had the plans to argue with him that time. Then he was going to do what he threats me. [37]

[99] In text message screenshot 617, he sent her a picture of the bed. She writes back that “But the good thing is that the sleeping arrangement is okay now”. She testified that she meant the sleeping arrangement in general, not regarding them together.

[100] The next text message (screen shot) to which defence counsel referred is number 645. It was on November 8, 2018, between 6:45 and 6:46. He told her that he needed to caress her. She wrote back “I really need even more”.

[101] She explained that she misunderstood the word “pick up”. In Farsi the word has “an ambiguous translation”. [38] She also agreed that she thought that “caress” meant “stroke”. [39] These do not seem to follow, but this is what she said.

[102] She explained further that,

Before saying that, I said that I’m going to dinner and what did you eat for dinner and he said I want to stroke you. I thought that he was saying that I want to show my appreciation that you are reminding me to eat. And I said that I would do that again for you if you – but when he said – after that in your heart or something I realized that I misunderstood, but I – it was not very – a big deal at that time for me to caress him and I don’t want to start argue again because the day before I had very argumentation over the phone and that was not helpful. [40]

[103] I find that her answer to the question is not clear. I could try to guess at what the answer is, but that would be risky. Again, I am not drawing an adverse conclusion regarding her credibility from that fact that she said this, rather I am saying that I don’t understand what her answer was to the question of why she said it. This concerns her ability to recount the evidence in an understandable manner, which affects its reliability.

[104] Next, defence counsel turned to the rest of text message 645 where Mr. H. said “Oh my life {actually: “Oh darling:”} It’s from being hot I am lucky if you don’t burn me at the end - she responded “No It is because of your performance You haven’t shut down my hotness”.

[105] She continued,

“Sex is like dancing If the man doesn’t know how to dance Dancing is absolutely not doable or You can’t trust and lean on him because You will fall But if the man knows it even if the Woman doesn’t know how to he will Make his partner turn without fault But leaving aside the sex and stuff I like the type of conversations that we Are having we got each others moods”.

[106] Her explanation for what she said about his performance is that she was not complimenting him on his sexual performance with her, but on his use of stickers in the text messages.

[107] In these circumstances I find it hard to believe that she was talking about stickers. Her text message refers to sex. Her explanation for this was that he was interested in dating her but wanted time to prove himself as an appropriate person. So, although she was talking about sex,

I’m saying that the person who wants to be a sexual partner should be trustworthy and the – can have the confidence and trust that person. I don’t think anyone is going to accept dating a person who just jump – jump on you on the hard floor. And so I was suggesting him that if he is looking for sexual partner that what he did on November 4 is not the way. He has to be trustworthy. He has to be have the respect to the woman so that the woman can accept dating the person. Just forcing someone into dates or showing violence, I don’t think anyone in this is going to accept – accept there is not threats behind. I was suggesting for his sexual interactions that he – a guy must be trustworthy for a woman. And otherwise the woman cannot trust or accept and then I said, this conversation occurs for us the good thing is we can continue talking and there’s so many - and we have so many things in common and talking and those to back the conversation... [41]

[108] Further on in cross-examination, she said that “here the performance is about his performance in his life. This is not about sexual performance at all”. [42] But in the above excerpt from her evidence she said “I don’t think anyone is going to accept dating a person who just jump – jump on you on the hard floor. And so I was suggesting him that if he is looking for sexual partner that what he did on November 4 is not the way”. That sounds like a comment on his sexual performance. Again, I am left confused by her answers.

[109] In her statement to the police (page 13) the officer asked her if she kissed Mr. H. willingly. She said, “It happened. It was – I didn’t want – I didn’t think of him as like a boyfriend or lover, I was dating someone else. But I don’t know. It happened and I – I was saying no but I didn’t act like it. Strict no”. This response is dripping with ambiguity and consequently, it is very difficult to discern its meaning.

[110] She testified that,

That’s my statement, that’s right. When I was doing the statement it was explained to me that that’s the purpose of the statement and I was more sensitive. It happened I also control, but I hug him because I have different opinion that he appreciates the time I spend there with him and helping him by moving his stuff. All of a sudden he started kissing me without my consent. And I asked him to stop but he didn’t. [43]

[111] Later, in cross-examination, she said “I’m just telling you the question that you’re asking me right now that’s a tricky one. And the answer that you said before which I gave that was the opinion of the accused. That was not my answer. That was not my opinion”. [44]

[112] Defence counsel asked her why she did not mention in her statement the police about getting choked and fainting and that Mr. H. was biting her. She said that she told the police many times that she wanted to add something to her statement. These requests do not appear in the transcript of her statement. She did not give any details about when she asked to add to her statement or who she asked.

[113] The complainant excused these missing allegations by saying that she had already told the story four times and that it was after her examination at the hospital. I grant that she probably recounted some information regarding the alleged sexual assaults to the police who went to see her at the hospital and then took her to the police division to give her statement, but aside from this she did not specify to whom she might have told her story four times.

[114] The statement was from 2:28 PM to 3:22 PM. The complainant said that she had not eaten since the previous evening. She was very hungry, and they took a lot of blood from her at the hospital. In addition, she did not have an interpreter. She was very nervous.

[115] If these things were bothering her, her statement does not indicate that she mentioned it to the police officers that took her statement.

[116] I find that getting choked, fainting and being bitten by Mr. H. would be striking details of the alleged sexual assault. Even in the circumstances described by the complainant, their absence from her statement cause me concern regarding whether they occurred at all.

[117] Regarding her evidence that she did not have an interpreter when she gave her statement, on pages 2,3, the interviewing officer, Officer Petrie, told her “If at some point in time you feel that you can’t express yourself or you don’t understand we can explain it better or we can stop and get an interpreter, okay?” Although she testified that she asked for an interpreter, [45] there is no indication that she did. This is a collateral point, but it demonstrates a tendency to excuse herself in questionable ways when she is challenged by the defence.

[118] On another point, the complainant agreed that although she testified that she did not want to see Mr. H. any longer, there is nothing of this in the text messages. That is because she told him that in their telephone conversations.

[119] I find that it is reasonable to wonder why such an important matter would not spill over to the text messages.

November 9, 2018

[120] On November 9, 2018, the complainant thought that it was necessary that they go out and talk in person. They met at a Winners store in College Park. She was not sure, but she thinks that it was around 5 PM.

[121] They met because he called her to tell her that he wanted to shop for curtains. Then “he was supposed to go to Starbucks and talk about what he did to me there”. [46]

[122] The Crown asked her that considering “the feelings about him that you’ve told us about and, and your feelings of fear, and your feeling of upset, why did you agree to meet up with him at all, as opposed to not?” [47]

[123] The complainant said that based on a conversation that they had the night before she assumed that perhaps “I was not right about the, the, the fear”. [48] She hoped that they would be able to “reach an agreement and a solution for, for what he did to me”. [49]

[124] He could not find what he wanted at Winners, so she suggested that they go to Marshalls. But he could not find what he wanted there either. He said that he would go to Ikea the next day.

[125] While they were at Winners, he received an upsetting call from his supervisor that frustrated and upset him. He asked her if she wanted to go to a bar nearby. It did not matter to her whether they went to Starbucks or to a bar. It looked like he needed to relax.

[126] They went to the bar. It was almost 6 PM. They were there for an hour or a little more. While talking, Mr. H. had tears in his eyes. She gave him a hug. He kissed her on the lips, which she thought was inappropriate. She did not know what to do. She thought that they were there “for apologizing” [50] , but he did not look like he wanted to apologize. He “did what he want. And he did in his kiss”. [51]

[127] Then they went to Mr. H.’s apartment. The Crown asked her “given that this –those things happened in the past and then now you’re at the bar and, and he’s kissed you, why is it that you agreed to go to his residence?”

[128] She answered this way,

So when we left the bar I was angry at him, but I didn’t want to argue because it was pointless. I’ve already argued over and over and same thing happened again. So I — we didn’t, we didn’t talk about going to his place until we were, we were in subway. So we were talking in subway from College Station to St. Clair Station, I guess it should be around ten minutes, he take my hand, he was shaking my hand crying and begging and should I leave [indiscernible] he’s, he’s going through very like huge incident that day, and I told him put your, put yourself in my shoe, shoes, begging to trust you while you kiss me in the bar? And he said kiss is not sex. And I was again shocked about one of the other — he was generating in way to excuses over and over. And in my opinion...

[129] This is not particularly responsive to the question. The Crown asked her again why she went to his apartment.

[130] The complainant told Mr. H. that if she went to his apartment, he should stay away from her. She did not want sex or kissing to occur. Also, all that they talked about in the bar was about his problems at work. They did not talk about what they were supposed to talk about.

[131] She asked him why she should go to his apartment. He told her that he felt bad about what happened, and he wanted to prove to her that he was not a bad person and that she could trust him.

[132] She thought that they were on the same page now and it was very important for her “to go over with the discussion, and, and it – also because, because of the incident at his workplace, he was playing with me and …” [52]

[133] This answer, too, strayed away from the question. The Crown asked her again why she “felt okay to go to his residence”. [53] The complainant responded that,

He swears when I, when I express my boundaries again and in my assumption that time what he did was [indiscernible] [indiscernible] thought, and he was going to dig his grave [indiscernible] by committing another thing. And although what he, he think that what he, what he did in bar and kiss is not sexual, a sexual thing, I didn’t have same opinion with him. And that was also another thing I, I had to discuss with him when we were in his place. So I have two incident to discuss with him that time. [54]

[134] The most that I can glean in terms of an answer to the Crown’s question is that she wanted to talk to him about what he had done to her.

[135] As they entered Mr. H.’s apartment, her hair got stuck in the zipper of her jacket. He helped her to get it unstuck. As soon as her hair was free, he kissed her on the lips. He pushed her face and body to the wall behind her. He grabbed her, took her to the bed and pushed her onto it. Her body, from the knees to the head was on the bed. Her feet were straight. She was facing up. He got on top of her.

[136] She described the incident as follows,

when he press — when he started blocking my lips, I was think, I was thinking ‘oh my God I was too stupid to accept to believe him that he’s not going to do anything.’ And I wanted to say something, but before I start talking — and — so when he, when he pushed me on the bed, he, he went further so I — I wanted to say something as a, as a protest and I realized at that time that he was penetrated his finger into my vagina. And I was extremely shocked, ‘what the hell?’ [55]

[137] As soon as he pushed her onto the bed he penetrated her with his finger. The Crown asked her what she was wearing. She said that she had on a simple blouse and “like a jean”. Because “it was a little stretchy and I didn’t have [indiscernible] or anything he simply could put his finger, his, his hand inside my pants ….” [56]

[138] When he pushed her onto the bed she had on her jacket and shoes. She had “everything on and he, his finger was inside me”. [57]

[139] The Crown asked her how he was able to reach inside her vagina with his hand. She said that he had “just put his hand inside my pants and panty and insert his finger into my vagina ….” [58] This does not answer the question, it just repeats the testimony that gave rise to it.

[140] She told him that she could not believe it. She was a virgin, why was he doing that. He told her that he did not see “any hymen here”. She told him “Took it out right away”. [59] He asked her why. She told him that she did not want to have sex with him. He told her that he thought that she wanted to have sex with him. He told her “you could say the previous time when I think that you couldn’t penetrate but this time my finger penetrate very easily and your body is not tense and accepting, and your, your body now accepted my, my finger. So I’m not convinced that you don’t want to have sex with me”. [60]

[141] Then she passed out. She was “passing out and getting consciousness, like over and over, so that’s, that’s, that’s more I passed out, and he, he started taking my, off my clothes”. [61] She came to when he was taking off her shoe because he lifted it up. She thinks that “the blood came to my body and I get a shock, and I came back to my body and get consciousness, I then told him to stop, but he was twisting my leg – he was very anger and I just wanted to like tear me into pieces”. [62]

[142] After he took off her shoes, he shook her to get her pants off. Because they were stretchy, he took them off without unbuttoning them. And “because of he – the way he was savage I – that was another reason I was passing out over and over”. [63] She has had fainting episodes since elementary school.

[143] She said that “after that he took my top. I wasn’t – I don’t – I wasn’t conscious when he did that, and then he took his clothes and then he came back on me”. [64]

[144] I question how she knows that he did these things if she was unconscious. This affects her credibility and reliability.

[145] When she regained consciousness, he had a box of condoms in his hand and he was putting one on. She lost consciousness again. He penetrated her with his penis. At that point she came back and had “a little consciousness to talk”. [65] She told him that she could not move her feet or her body at all. He said that was “because of his, his penis is not very large and I think I don’t feel anything it’s because of that”. But when was [indiscernible] was about my whole – he -I, I was paralyzed”. [66]

[146] He took his penis out of her and turned her onto a different position that he wanted to try. She told him that she could not believe that he had just stolen her virginity.

[147] He constrained her by pinning her to the mattress. He pressed her into the mattress and pulled on her jaw making it hard for her to breathe. He was trying to turn her on her side. He held both of her hands with one hand and used her hair to control her. He pulled her head from side to side and pushed it into the mattress. Her hair was “around” her making it difficult for her to breathe.

[148] He kept “doing what he wanted to do for I guess an hour until he ejaculated …. He took off the condom …. It was covered with blood and blood on his feets”. [67] She asked him to give it to her and she went to the bathroom. She looked at the condom under the light and threw it away. She came out and “told him how long I was in there”. [68]

[149] She said that “all the incident was both physically I couldn’t keep the balance and I had very bad pain, and when after I saw the blood it was even more pain ….” [69] She went back to bed and fainted. He came to her, touched her body, and told her that she was very cold. He put a blanket on her.

[150] I wonder how she know that he came to her and touched her body and told her that she was cold if she was unconscious. This detracts from her credibility and reliability.

[151] Then they were both on the bed again.

…. he turn me after a while that I was there, I don’t know how long it was, but he started kissing me, and he was on my top, and I, I noticed accidently he has some red patches on his arm …. he said, “That’s an [indiscernible] disease I have, don’t worry it’s not contagious.” I didn’t say anything but he was angry — he get frustrated because of that, he stopped kissing, he came to my right side, he slept there and he touched my right breast. I don’t — I, I ask him don’t do that, he gets my left one and pressed harder and then he said I, my reaction, by body reaction was more, he said, “I realize that your left breast is more sensitive” and he, he touched my, my body with his finger, he gets my inner thigh and like my, my leg, and he said he, he feels bad that he has, he had ejaculated, but I didn’t reach that point, and he said do I like, did it pleasure for me that he’s touching me? And at the same time he put my hand and put it on his penis. I, I didn’t say anything but I turn my body so his hand was move and my hand was move also. Because all the time that he was doing that I was telling him over and over to stop …. [70]

[152] He did not listen to her so she just moved his hand away. They went to the kitchen for some water. She felt weak and her vision was blurry. She had trouble keeping her balance. As she was standing there he came at her suddenly and “put me on the, on the cabinet”. [71] She looked at the eczema on his arms. He got angry because he thought that she was always trying to find fault with him. He shouted at her. She tried to keep her distance from him. Her hair got stuck in a drawer. He started kissing her. When he realized that her hair was stuck, he stopped kissing her.

[153] He helped free her hair from the drawer and started kissing her again. She pushed back and started talking to him. She talked to him about her ex-boyfriend and virginity. Mr. H. got angry and told her that he did not want to hear about her ex-boyfriend. He took her by the hand to the living area. Since she was dizzy, she sat on the bed. He put on another condom and had sex with her for 15 – 20 minutes.

[154] He told her that he had learned how to suck her body and he was not going to leave her. She told him that if he wanted to force her to have an orgasm it was not going to happen for her. He could not ejaculate so he stopped and went to sleep.

[155] She wanted to leave the apartment but because she was shaking so much, she could not get out of bed. After about 40 minutes she got out of bed and tried to call Uber. But she saw that “there’s so many Ubers around in two minutes this one, and this one, so I didn’t get a Uber that time ….” [72] In her statement to the police she said that she cancelled her Uber ride. In cross-examination, when defence counsel asked her about this, she said that she did not understand what the word cancel meant. She said that she asked the police for an interpreter, but the officer said that she did not need one. She said that she did not know that she could be questioned on her statement during the trial.

[156] I checked her statement. At the beginning, on page 2, Officer Petrie said, “Now, we spoke before. I understand you speak English as a second language. Your first language is Persian, but I understand you clearly and you understand me clearly and although you have an accent you speak English fluently would you agree?” She said “Yes”.

[157] Officer Petrie told her “If at some point in time you feel that you can’t express yourself or you don’t understand we can explain it better or we can stop and get an interpreter, okay? I would ask that you acknowledge that you understand this statement is being audiotaped and that you consent to such a tape being made. I that understood?” She said “Yes”.

[158] I acknowledge that in the last excerpt Officer Petrie asked two questions and asked her if she agreed, but it is not clear if she was answering yes to both, or just one of the questions. But the point is that she did not ask for an interpreter as she testified that she did.

[159] Concerning what happened next during this alleged assault, when she was able she went to the bathroom,

I was expecting that another kind of — there would be so much bruise or something on my body. And when I went inside the, the bathroom in front of the mirror I was excite there for 20 minutes, I wasn’t doing anything, I was just in shock of the incident happen to me, and I as standing there but I was not conscious. So I came back to my body and realized that ‘oh I, I as supposed to leave’ and, again I went out, I checked my cell phone, was 20 minutes I was, I was there, and started wearing my clothes and then called the, the Uber after. [73]

[160] I do not understand how she could be standing if she was not conscious. Is this a language problem, or is it exaggeration? I do not know. The complainant had the use of interpreters for the trial. Sometimes she used them, sometimes she did not want to. I find that her evidence about standing while she was unconscious is not reliable or credible.

[161] She had to wake up Mr. H. because she could not keep her balance “and I didn’t know which floor was that building or how to get out of the building I couldn’t remember the detail that entrance of that building anymore.” [74] He escorted her out of the building and the Uber picked her up and took her home.

[162] She did not mention it at first, but later during cross-examination, she said that he kissed her “the last moment I was getting very close to the taxi or the Uber”. [75]

[163] In cross-examination, she agreed that on November 4, 2018, she had taken the elevator to and from Mr. H.’s apartment. She knew that his door was just across the hall from the elevator. Defence counsel asked her why, then, would she have to wake him up to escort her out of the building.

[164] She said,

So for the first time when he went into the building he had a car and he parked the car. For the second time when we went, we, we were taking subway to his place, and he used another, another way for reaching the building. And there, there were two different way of reaching the building. And I didn’t know where, where — so in which building that his different entrances. I don’t know if that building has only, if it has only one entrance or not, just I just think you’re saying that it was just one entrance. I don’t know that. But we enter the building in two different ways, on two different days. Also I couldn’t walk. I, I was dizzy. And when he was taking me to there, I was, I was helped me in walking. Not only for just the other [indiscernible] way, but also I didn’t have balance. [76]

[165] Therefore, she needed his help to get out of the building.

[166] She did not consent to any of the sexual activity that took place on November 9, 2018.

[167] Defence counsel asked her about a picture of her and Mr. H. walking through the lobby of his apartment building holding hands on November 9, 2018. Here is their exchange on this question, [77]

Q. Okay. So, when you were walking up to the apartment from the subway, were you still angry with him or were you seeing him as a lover?

A. Neither. His intention – he was really frustrated because of what had happened to him in the first place.

Q. So, did you make out with him in the hallway outside of his apartment, before you even got inside?

A. No, not at all.

Q. Were you holding his hand when you were walking in or were you acting like you were angry with him?

A. I wasn’t holding his hand and I wasn’t angry at him. What I expected him to do is to apologize for what he had done on the previous occasion.

Q. Okay. So, I’m going to show you a photograph now, please let me know if you can see the photograph on your screen. Do you see it?

THE WITNESS (IN ENGLISH): Mm-hmm.

A Yes.

Q. I’m going to suggest to you that what we’re looking at here [the picture] is the back of you and Mr. H. and you’re holding his hand, isn’t that right?

A. Could you tell me what time it was taken when we were walking in the lobby?

Q. Yes, I can. It’s on the – on the photograph. It’s actually – this was sent to defence counsel by way of police disclosure and it says, level lobby, 7:39 and 54 seconds p.m.; 7:39 in the evening.

A. Well, I don’t remember the [inaudible] but, anyways, he wouldn’t be holding my hand – holding hands isn’t a big deal ....

Q. Right. Well ....

A. If somebody holds somebody else’s hand it doesn’t mean that they intend to have sexual relationship.

[168] In re-examination, she stated “It wasn’t as if we were holding hands all the time, especially when we went into the elevator, when we were going towards his apartment”. [78]

[169] The complainant stated boldly that she was not holding Mr. H.’s hand. When confronted with evidence that she was, she said that she did not remember. Why did she not say that when she first answered the question. She must have known that she did not remember when she categorically stated that she was not holding his hand.

[170] In re-examination, she tried to defend her answer by saying that it was not as if they were holding hands all the time. This was a weak and unconvincing defence of her initial response to the question.

[171] She was caught in an error, exaggeration, or perhaps a lie, which she tried to attenuate by saying that it did not mean that she intended to have sex with him. I do not judge her behaviour in holding hands with Mr. H. as having any significance concerning her credibility and reliability regarding the alleged sexual assaults. But I do take note that her testimony regarding her behaviour is of questionable truthfulness or reliability.

[172] Next, defence counsel showed the complainant a video of her walking out of the building with Mr. H. on November 10, 2018 at 12:29 AM, through the same lobby as is depicted in the still photograph.

[173] He sought to challenge her assertion that she had to wake up Mr. H. to ask him to escort her out of the building because she did not know where the entrance was. She said that “He had walked me from another direction, from another room. I wasn’t sure where Uber would be waiting for me when I walk out”. [79]

[174] He suggested to her that although she testified that she needed his help to walk because she was so unsteady, the video shows that she was walking fine. She said that this was unfair because she could not walk properly for the next several days. Moreover, there were two doors in the lobby, and she did not know which one to use to leave the building. She agreed that on November 4, 2018, she used the same door to enter the building, but it did not look like the main entrance. She agreed, however, that it was the fourth time that she had used that door.

[175] I find that this evidence shows that she knew more about how to get out of the building than she wanted to admit. In addition, the video casts doubt on her evidence of how unsteady and weak she was. Again, one might argue that these are collateral matters, but they betray a tendency to want to make things look more favourable to her than what the evidence shows. And as can be seen from her evidence above, these are not the only instances of this type of testimony.

[176] Defence counsel asked her about why she told the police that on November 9, 2018, she walked out on her own while Mr. H. was asleep. She said that this was a mistake.

It was a mistake because they were suggesting – they were making suggestions, and it was the officer assumed that since I left while he was asleep then I must have been alone, it was a suggestion by the police officer. I didn’t realize it at the time because my English wasn’t good enough then, but later on when I realized he saying – I did point it out to him. [80]

[177] Then she said,

... I decided to wake him up. When I decided to wake him up was that for two reasons. One was that – so, that I could lean on him if I needed to and also so that he could lead me to the main entrance.

MR. MCDONALD: Q. Okay.

A. When I found out that – decided that I could walk on my own I decided to put a distance between myself and him, but – but, anyway he was there if I needed to have his assistance. [81]

[178] She added that one cannot see her pain in the video and that she was bleeding profusely.

[179] Defence counsel asked her why she sent text messages to Mr. H. when she got home on November 9, 2018. She replied,

When I reach home I was still texting my friend and it came to my mind that he, he is expecting me to be home by now and if, if he open application he can see that I’m online on the application and I, I just ignore his message. Because I was very afraid and, and my expectation was that what if he started texting me, calling me, and when, when I was looking for certain priority was talking to my friend. So I send that message that I’m home just to keep him away and just to, just to give him this what the — okay you see you know everything’s fine, just go to sleep and in my, in my thinking I, I, I did this to keep him away from me and so that I had time to call my friend — continue texting my friend. [82]

[180] She wanted him to just leave her alone so she could continue to send text messages with her friend without him interrupting. In her message she called him “My darling”. She said that the translation of “azizam” in Farsi in the text message as “Dear” in English is not accurate. “My Dear” is a better translation. She told him to go to sleep and have a good night and sent him a kissing emoji. Later, in cross-examination, she said that she was mirroring his language and the emoji. It was “just to keep him away and um, he like, have space in chatting with [indiscernible]. [83]

[181] On one occasion in cross-examination, defence counsel asked her whether she would agree that in any language a kissing emoji is a sign of affection. She avoided answering the question. She said,

Probably when he sent that emoji he wanted to show that he wants to keep phoning and talking and dating. Uh, I had a [indiscernible] say his message, I gave same impression; that he is interested in turning it into, like a [indiscernible] episode. But when I was mirroring the same thing on that day, I thought then, I have three options or reaction to that. First of all, I could simply ignore it …. [84]

[182] I interrupted her to ask her to answer the question. Defence counsel repeated the question and she said that she would not “characterize it as anything, but I told you the reason I send it and also I was never – uh, that if he see that he’s going to uh, have that kissing representation. I was aware that sending that message was going to give a wrong impression”. [85]

[183] She denied defence counsel’s suggestion that the reason that she wrote these things was because Mr. H. never assaulted her.

[184] Regarding another text message exchange at 11 AM on November 10, 2018, Mr. H. asked her how she was. She said that she was well and that everything was okay. She also appears to have told him that she did not know how she was because she did not want to get into an argument with him. She asked him if he was watching soccer.

[185] She told him that she wished that he was with her. She thanked him using “My darling” or “My dear”.

[186] She did not tell him how upset she was at what he did because he could “predict how I was feeling”. She thought that it was pointless to discuss with him how she was feeling. [86] It is not that clear, but later, she seemed to say that she did not think that it was the right time to talk to him about the alleged assault on November 9, 2018. [87]

[187] In cross-examination, she mentioned when she told him that she was in pain, he said that he enjoyed that and the he wanted to hear her scream in pain. It gave him sexual pleasure.

[188] She said that on November 9, 2018, she spoke to a friend who is a doctor who told her to speak with her family doctor, who is a man. Her friend suggested that she wait two or three days before going to the hospital so that her vaginal bleeding would stop.

[189] But she wanted a female doctor. It took a while to find one. It seems like she went to a clinic where her friend worked, and they told her that she could go to the hospital where they specialize in rape, so she decided to go there. At the hospital they explained the procedure and then she went to the police after. [88]

[190] The Crown asked her why she did not call the police after the first incident. She answered that she did not know that she should contact the police to report it. She was a “newcomer, I came from a different country, so when sexual assault happens the witness should have a lawyer and start with a court procedure”. [89]

[191] She explained further that,

So for the second incident [indiscernible] when I was [indiscernible] to the police station I didn’t know that. Because of my bruising and infection I have that time, after so many days, I went to the — even I didn’t know I should go to the hospital and [indiscernible] they, they suggest me to go to the hospital and then there was the nurse explain to me about the legal procedure, about the police [indiscernible] and that I, I should go to the station for a statement. So before that I thought that I should find a lawyer and takes a lot of time and it also I should pay for that lawyer, and then, then that, the, the crime is going. So I was totally wrong about the legal procedure. If I knew I, I had to call the police everything would be maybe start at the very beginning. [90]

[192] Regarding her statement to the police as compared to her testimony, defence counsel asked the complainant why she testified that as a result of these alleged assaults she was blank or in shock but did not tell that to the police in her statement. She gave a confusing answer.

I remember say in the court that I was just blank and just shocked. For sure when he penetrate his finger inside me I got shocked and I passed out, but when I returned back I was talking to him asking him to stop but he didn’t. And the whole incident of course it was shocking and it is my personal judgment of him and the other things are not the facts that is here and I was doing this statement he said there I said that without mentioning when my mind or how did I feel. [91]

Agreed Statement of Facts

[193] Counsel filed the following agreed statement of facts

1. As of today’s date, P.H. has no criminal convictions or discharges.
2. P.H. is not, and has never been, charged with any Criminal Code offences besides the offences before this Court.

Dated this 11th day of May in the year 2021, at the City of Toronto.

[194] That was all the evidence.

The Submissions of the Crown

[195] The Crown submitted that if I believe the complainant’s evidence, it establishes all the elements of the offence with respect to both counts. She argues that I should believe her and find Mr. H. guilty of both charges.

[196] The complainant was often upset and frustrated with the trial process. But this should not cause me not to believe her. She relies on R. v. Dadson. [92]

[197] The Crown also asks that I not hold against the complainant that she often had trouble focusing on the questions asked of her. She struggled to speak concisely. This should not cause me to draw an adverse inference concerning her credibility.

[198] A person’s credibility should be addressed according to their individuality and ability to communicate. She cited R. v. J.A. [93] The Crown submits that the complainant considered context and background as important. This made it difficult for her to focus. Often what she thought was important and relevant was different from what the court must assess. The way that she understands the world and the way she communicates should not lead to an adverse assessment of her credibility.

[199] Regarding inconsistencies, R. v. A.M. [94] provides guidance on how to evaluate them. In R. v. C.R. [95] the court stated that if a witness explains an inconsistency, it loses its power to raise a reasonable doubt.

[200] Concerning, the inconsistencies between her statement to the police and her evidence, it is just that her account of what she alleges was more detailed in court than in her statement to the police, in particular about the incident on November 4, 2018.

[201] Additionally, she said that her state of mind was troubled when she gave her statement. She had just come from the hospital where she had been examined. She had to explain the alleged events multiple times in quick succession. She did not feel well, and she did not understand what the purpose of the statement was. Also, her English was her second language. She was nervous and had many thoughts in her head when she gave her statement. It was difficult to focus.

[202] In R. v. J.J.R.D., [96] the accused was found guilty despite that the complainant provided more detail about the offence in her testimony than she did in her statement to the police.

[203] The inconsistency about her ordering an Uber is not significant. She explained that she was going to order one but changed her mind. She mistakenly used the word “cancel” to indicate this. She did not mean that she ordered one and cancelled it.

[204] Regarding the issue of whether she took a shower or a bath at Mr. H.’s apartment, and her use of the word “tub” was due to a language issue that she had. She made a mistake. She said that she told the police to correct this.

[205] About the video and picture that show her holding hands with Mr. H. in the lobby of his building, the complainant said that they did not hold hands, but what she meant was that they did not hold hands the entire time. The still picture did not reflect the whole time from when they entered the building to when they got to Mr. H.’s apartment.

[206] The Crown cautioned the court against using common sense about human behaviour to evaluate the complainant’s evidence.

I would urge the court to take care before accepting certain, certain things as demonstrative of either internal inconsistencies in Ms. A.'s evidence or otherwise diminishing her credibility. Where a judge, a trier of fact made factual findings that are grounded in common sense, that, however common sense propositions about the, the likelihood of human behaviour in all circumstances that there is, there is a, an extent to which that is fraught in cases of sexual assault. [97]

[207] The Crown referred to R. v. A.B.A. [98] where the court pointed out that common sense can mask stereotypical assumptions. R. v. Lacombe [99] states that it is an error to rely on stereotypes.

[208] For example, defence counsel asked the complainant why she would wake up Mr. H. to help her get out of the building if he had just sexually assaulted her. The Crown pointed out that the courts have repeatedly stated that there is no one right way for victims of sexual assault to act afterwards.

[209] The Crown argued that, similarly, her continued contact with him after the alleged assaults and sending him a sticker of a girl in a bikini and calling him “dear” or “darling” do not compromise her evidence that he sexually assaulted her.

[210] The Crown argued that the complainant did not contradict her statement to the police in a material way. Any differences were her providing more information during her testimony in response to more detailed questioning.

The Submissions of the Defence

[211] Defence counsel made the following points about the complainant’s evidence.

[212] Her evidence lacked consistency. She lied and sugar coated her explanations. Her behaviour was inconsistent, and it defied common sense.

[213] The defence submitted that his argument is not about how her behaving in a particular way after the alleged assaults. For example, when she asked Mr. H. to escort her out of the building after the alleged sexual assault on November 9, 2018, the defence does not argue that this conduct is inconsistent with an assault having occurred. However, her explanation for this behaviour defies common sense. She said that she was unsteady on her feet and needed Mr. H. to support her. But the video shows that she was waking without difficulty. She was ahead of him and using her cell phone as she walked.

[214] Her explanation that she did not know the way out of the building is contradicted by the fact that she had used the same door to enter and leave five hours earlier the same evening. She is seen in the photograph entering the building holding Mr. H.’s hand.

[215] She also used the same door on November 4, 2018. She is lying about not knowing the way out of the building.

[216] She also misstated the date of the November 4, 2018 incident when she said that it happened on November 2, 2018.

[217] After the alleged assaults she kept in contact with him and complimented him on how he performed sexually. She told him that she loved him. Her explanations for this defy common sense.

[218] Defence counsel attacked the complainant’s reason for wanting to get back together with Mr. H.:

1. She said that she wanted to understand why he did what he did.
2. She wanted him to apologize. She wanted him to admit his guilt. She needed to reach a solution.
3. She wanted to console him regarding his troubles at work.
4. She had to help him with his shopping.
5. Once, she said that she missed him.
6. He had a move ticket and she did not want the ticket to go to waste.
7. She wanted to gather further evidence because there were going to be legal proceedings.
8. She wanted to avoid a character assassination by Mr. H. The text messages do not reflect such a danger, however.

[219] She gave explanations for her sexual activities with Mr. H. as being that she lacked the mental ability to avoid it. On one occasion she was passing in and out of consciousness. She said that she was absent-minded and was not thinking.

[220] Once she said that when he was taking off her clothes, she did not have control over her body.

[221] The defence argues that all these things are lies. She is trying to absolve herself of any responsibility for the sexual encounters.

[222] The text messages are loving and flirtatious. Her answer as to why the text messages do not reflect any upset with Mr. H. was that she expressed all of that in their phone calls.

[223] She told Mr. H. that she had just finished a relationship and was giving herself some time. She was not dating again yet. But she also said that she had just started dating someone.

[224] Defence counsel said that her explanations of how he physically manhandled her on November 9, 2018 are difficult to understand because they seem impractical. She made it out as if Mr. H. had four arms. She did not properly explain how she got to the bed from the kitchen. She said that she was dizzy, but she was able to go to the bathroom for water.

[225] Also, she said that on November 9, 2018 he had his finger in her vagina while she still had on her clothes. Defence counsel questions whether this is possible.

[226] So on November 4, 2018, she said that she was frozen and on November 9, 2018 she was dizzy.

[227] She testified that she did not have feelings for him, but the text messages betray her evidence. She lied when she said that she did not know what the word “love” meant. This is unrealistic since she attended university in Toronto where the classes were all in English.

[228] Then she said that when she told Mr. H. that she loved him she meant it in a platonic way. She also said that she told him that for reasons of sympathy, her memory was clouded. On one occasion her response to the question of why she told him that she loved him was nonsensical. She said that she felt “breathless”. She is lying when she says that she did not know what the word “love” meant.

[229] Defence counsel argued that her account of how Mr. H. interrupted the sexual assault to go get lubricant from the bathroom is unbelievable. Counsel asks why she did not protest at that time. Her explanation of how she knew that there was lubricant in the bathroom does not make sense. She said that she must have seen it there earlier.

[230] Her performing oral sex on Mr. H. does not make sense. She said that it was disgusting but she did not have a choice. Defence counsel asks why did she not have a choice? Why would she do this?

[231] On November 4, 2018, she stayed at his apartment for four hours after the alleged assault.

[232] The defence argues that although I should not assume that her behaviour is inconsistent with the assaults having taken place, I can find that they are consistent with a consensual, loving relationship.

[233] Concerning bathing together after the alleged assault on November 4, 2018, defence counsel argued that it is not credible that she would get into the tub with Mr. H. to alleviate the pain in her back. He says that it defies common sense. The Crown asked her why she stayed in his apartment. She said that she wanted to understand why the assault happened.

[234] Why did she accept a ride home from Mr. H. after this? Her answer was evasive.

[235] Defence counsel submits that her explanation for the text where she told Mr. H. that she missed him and sent him a heart emoji is a lie and defies common sense. She said that it was because she wanted to discuss the law of consent with him.

[236] When the Crown asked her why she sent Mr. H. a message saying that she missed him, she responded that she had called him and told him that she did not want to see him again. This is non-sensical.

[237] Defence counsel pointed out that she said that in her culture maintaining virginity until marriage is very important, but that if virginity is lost as a result of an assault, it is not considered as a loss of virginity.

[238] After the incident on November 4, 2018, she wrote in a text message that she was in pain the next day. He told her that it was because of the hardwood floor and that it will be better when he gets a bed. She agrees that it will be better. She wrote that the bed will provide a better sleeping arrangement.

[239] He wrote that he hopes that the bed will arrive the day after tomorrow “the opening of the bed in the house”. She wrote back “If you want to fix the bed until I come back” and sends a smiley face. Defence counsel argues that given this background she is lying when she says that she was shocked to end up on the bed during the alleged assault on November 9, 2018.

[240] The defence pointed out that she told the police that she cancelled her Uber call on November 9, 2018. But in her evidence, she said that she did not know what the word “cancel” meant. She wanted to say that she refrained from ordering it.

[241] The defence argued that the complainant alleges these assaults because she is angry at Mr. H. for not behaving like a gentleman after they had sex. He did not answer her text right away about her getting home on November 9, 2018. And further, the next day he went out to watch soccer with some friends and did not send her a message until afterwards.

[242] Defence counsel questioned why the complainant would not have expressed her upset to Mr. H. for having sexually assaulted her.

[243] He pointed out that she lied on her LinkedIn page by saying that she had a master’s degree in science.

[244] He referred to her evidence that she told the police that she took a shower at Mr. H.’s apartment, but in her testimony, she said that she took a bath. She explained that she did not understand the word shower, which is unbelievable since she attended university in Toronto and has been in Canada for many years.

[245] Defence counsel points out that when Mr. H. told her in a text message that he needed to caress her, she said that she needed even more. She writes in a complimentary way about his performance and that he did not shut down her hotness. The complainant could not give a credible answer for this seeming inconsistency with her allegation that he sexually assaulted her.

[246] After he took her home after the November 4, 2018 incident, she sent him a sexually suggestive sticker in a text message. It was of a woman in a bikini wearing a Santa hat. Defence counsel argued that “there was just no explanation for why, if this wasn’t a consensual sexual act, this wasn’t something that she was really and actively participating in, why would she send this sexy photo? It doesn’t make any sense at all, and more importantly her answer to that made no sense”. [100]

[247] Her explanation that she thought that she had to go along with him because she feared that he would ruin her reputation does not ring true. She does not say anything in her text messages about him ruining her reputation. And she does not answer counsel’s questions about why if he is threatening to ruin her reputation his text messages are flirtatious and loving.

[248] She did not answer questions about why after she was dropped off at home after the November 4, 2018 incident, she sent him a message at 12:06 AM of a happy couple kissing on the neck.

[249] Her lack of credible answers with respect to these questions and her penchant for giving testimony about other things instead, show that she was evasive when confronted with these topics.

[250] Defence counsel pointed out that on one occasion she said that she sent the texts to try to prove that something sexual happened on the hardwood floor in an apparent effort to build a case against Mr. H. This shows a level of cunning and plotting against Mr. H. He argues that this shows that she is not truthful.

[251] The defence brought up that she said that Mr. H. was “tricky”, but later in her testimony she said that she did not understand the word “trick”. This shows that she is manipulative.

[252] Defence counsel argued that she was embellishing what happened on November 4, 2018 because she told the police that she did not say “yes” or “no”. At trial she testified that he forced her to have sex. This is more than just a minor expansion of what she said to the police.

[253] Regarding November 4, 2018, she told the court that Mr. H. cut off her breath and forced her to have sex with him. But afterwards, she complimented him on his performance saying that he did the dance so well.

[254] Defence counsel said that he asked her if she held Mr. H.’s hand when they went to Mr. H.’s apartment on November 9, 2018. She said that she did not. He showed her the picture of them in the lobby, which shows that they were holding hands. When contradicted, she said that she was not holding his hand the full time.

Reply by the Crown

[255] In reply, the Crown argued that at trail the complainant’s characterization of the incident on November 4, 2018 was not completely different from what she told the police. Her statement says that “I was saying no, but I didn’t act like a strict no”. She was referring to the beginning of their kissing, not the entire incident.

[256] Moreover, she told the police that Mr. H. pushed her onto her back, put his hand on her chest and that she had trouble breathing.

[257] The next point is that the complainant said that she did not understand what platonic love was, not that she did not understand what the word “love” meant.

[258] Regarding the complainant’s fainting, she said that she did not have any fainting spells in the months before the incidents because nothing stressful happened to her. Her fainting was a reaction to the sexual assaults.

[259] Next, the complainant’s testimony that she was “frozen” by the assault is not as outlandish as defence counsel makes it out to be. People respond differently to traumatic events. There is no one way to respond.

[260] Regarding the dates of the first alleged assault, the complainant never said that it occurred on November 4, 2018. The only date that she gave was concerning the alleged assault on November 9, 2018. Then she worked back from there.

[261] Concerning the defence’s point that the complainant has multiple explanations for her thought processes and for her reasoning, the Crown submits that it is not necessarily the case that these are mutually exclusive.

[262] The last point in reply was that in the complainant’s text messages after the alleged incidents when she said, “sleep well my dear” and sent friendly emojis, the court should remember that there is no one way for a victim of sexual assault to behave. It would be relying on myth-based reasoning to find that this behaviour belies a sexual assault.

Analysis

Onus of Proof

[263] The Crown is obliged to prove beyond a reasonable doubt that Mr. H. committed sexual assault on the complainant on November 4, 2018 and November 9, 2018. Mr. H. does not have to prove that he is not guilty.

The Complainant’s Credibility

The Rule Against Stereotypical Inferences

[264] Regarding the complainant’s credibility, many of the defence’s attacks focused on whether after the alleged assaults the complainant would have behaved the way that she did, written the texts that she wrote, and said that things that she said had Mr. H. really sexually assaulted her. Defence counsel argued many times that her behaviour defied common sense.

[265] Appellate jurisdiction in Canada holds that the court cannot use a standard of how a victim of a sexual assault should or should not behave to assess the complainant’s credibility.

While in most instances the adversarial process allows wide latitude to cross-examiners to resort to unproven assumptions and innuendo in an effort to crack the untruthful witness, sexual assault cases pose particular dangers. Seaboyer, Osolin and Mills all make the point that these cases should be decided without resort to folk tales about how abuse victims are expected by people who have never suffered abuse to react to the trauma: Mills, supra , at paras. 72, 117-19; R. v. D.D., 2000 SCC 43, at para. 63. [101]

[266] In R. v. A.B.A. [98] (supra), the court held that “Reliance upon stereotypical views about how victims of sexual assault would behave is an error of law: (citations below). [102]

[267] R. v. R.R., [103] the court held that “Trial judges and juries […] must invariably fall back on their common sense, and their acquired knowledge about human behaviour, in assessing the credibility and reliability of witnesses”. However, the court in R. v. A.B.A. (Para. 7), cited with approval, R. v. A.R.J.D. [104] , where the Alberta Court of Appeal described “how seeming resort to “common sense’ can mask reliance on stereotypical assumptions”.

[268] In R. v. J.C., [105] the Ontario Court of Appeal held that “it is an error of law to rely on stereotypes or erroneous common-sense assumptions about how a sexual offence complainant is expected to act, to either bolster or compromise their credibility:” (citations below) [106]

[269] R. v. J.C. held in paragraph 65 that “the rule against stereotypical inferences does not bar all inferences relating to behaviour that are based on human experience. It only prohibits inferences that are based on stereotype or “prejudicial generalizations”: (Citations below) [107]

[270] Further, R. v. J.C. held in paragraph 66 that “it is a myth or stereotype that a complainant would avoid their assailant or change their behaviour towards their assailant after being sexually assaulted, and it is an error to employ such reasoning :” (Citations below) [108]

[271] The court in R. v. J.C. held that “an error is “based” on a stereotype or improper inference when that stereotype or improper inference played a material or important role in explaining the impugned conclusion”. [109]

Collateral Facts

[272] The defence challenged the complainant many times on matters that were collateral to the elements of the offence.

[273] The application of the collateral fact rule is not an issue in the case at bar, however for the purpose of weighing the effect of the defence attacks, it is useful to define what a collateral fact is. A “collateral fact is one that is "not determinative of an issue arising in the pleadings or indictment or not relevant to matters which must be proved for the determination of the case." [110]

[274] However, this does not prevent a trial judge from applying long standing tests of credibility such as the evasive nature of a witnesses’ testimony and refusal or difficulty in answering questions.

[275] As seen from my discussion of the complainant’s evidence above, she was often evasive, confusing and rambling in response to questions by both Crown and defence. She often used counsels’ questions to hold out at great length about matters that did not relate to the questions. Both counsel and the court tried numerous times to guide her to focus on the questions and to respond just to the questions. In most cases these efforts were in vain. This behaviour gave me the impression that she had her own agenda and she was not going to let the trial process get in the way of her expressing her views.

[276] Her manner of answering questions often made it difficult for me to understand her answers. One might think that this was because English is her second language. But the court provided two or three fully accredited interpreters for her. At first, she used them for the interpretation of the questions and of her answers. Then she complained about the interpretation and did not want to use them. She testified in English for a while and then asked to use them just for the questions asked of her. Then she asked to use them just to answer the questions. Then she asked to go back to not using them.

[277] The court and counsel tried to accommodate her as best as possible with not much luck. Finally, I directed that she use the interpreter for the questions and for her answers. I wanted to stop alternating between these various options because it was too confusing.

[278] The Crown relied on R. v. Dadson [92] (supra) to support her submission that although the complainant was often upset and frustrated with the trial process, this should not cause me to disbelieve her. The court in R. v. Dadson, described the complainant as “measured and controlled”. The court described her as “clearly upset” and said that at times she reacted “a bit defensively” when defence counsel “exposed an inconsistency” but she was not angry. The court said that “Before ascribing a lack of credibility to intermittent, mild defensiveness …. We need to put ourselves into the shoes of the witness” (paras. 78,79).

[279] Considering the description of the complainant in R. v. Dadson I agree with the court’s observations. However, the complainant in the case at bar is significantly different. In the case before me I find that the complainant was far from “measured and controlled”. And she was much more than “a bit” defensive. In addition, her behaviour in court was much more than “intermittent, mild defensiveness”. Therefore, I find that the facts in R. v. Dadson are significantly distinguishable from the case at bar.

[280] The Crown submitted that the fact that the complainant had trouble focusing on the questions asked of her and that she struggled to speak concisely should not cause me to disbelieve her evidence.

[281] It is difficult to determine the veracity of a witness just from the fact that the witness continually cannot not focus on the questions asked and often launches into long, excursive speeches on things that she thinks are important, but which no one asked about and were often not relevant to the trial. This type of testimony may be an effort to cover up untruths. But it is also a concern regarding the reliability of the witness.

[282] In R. v. H.C. [111] the Ontario Court of Appeal explained the difference between credibility and reliability,

Credibility and reliability are different. Credibility has to do with a witness’s veracity, reliability with the accuracy of the witness’s testimony. Accuracy engages consideration of the witness’s ability to accurately

i. observe; ii. recall; and iii. recount

events in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, on the other hand, is not a proxy for reliability: a credible witness may give unreliable evidence: R. v. Morrissey (1995), 22 O.R. (3d) 514, at 526 (C.A.).

[283] It may be that as the Crown submitted, the complainant views the world in a way that caused her to testify the way she did. I do not criticize her way of perceiving the world. But her evidence must be stated in a way that I can clearly understand what she is saying. Many times, I was confused by her repeated inability to focus on the questions and on giving clear answers to them. In addition, she consistently ignored counsel and me when we asked her to focus on the questions and just give answers to the questions instead of talking about a myriad of other things. I find that the complainant’s winding and often difficult to understand testimony causes me to doubt the reliability of her evidence. Moreover, these aspects of the complainant’s evidence persisted throughout the trial. They were not isolated or intermittent instances. Additionally, they concerned both her recounting of the alleged assaults as well as her evidence on other aspects of the case. Her method of testifying gives me particular concern regarding her ability to recall and especially recount the events in a manner that is sufficiently comprehensible for me to trust her evidence.

[284] In R. v. A.M. [94] (supra), the court stated that,

a trial judge giving reasons for judgment is neither under the obligation to review and resolve every inconsistency in a witness' evidence, nor respond to every argument advanced by counsel: R. v. M. (R.E.), 2008 SCC 51, at para. 64. That said, a trial judge should address and explain how she or he has resolved major inconsistencies in the evidence of material witnesses: G. (M.), at p. 356 C.C.C.; R. v. Dinardo, 2008 SCC 24, at para. 31. (para. 14)

[285] Regarding the inconsistencies and contradictions in the complainant’s evidence, I note that there were several. Some where more germane than others. I will address the ones that I consider the most concerning.

[286] The Crown submitted that according to R. v. C.R. [95] (supra), inconsistencies lose their weight if the witness explains them and the trier of fact accepts the explanation. R. v. C.R. shows that mere explanations are not enough.

[287] It is true as the Crown states that some inconsistencies carry more weight than others. She cited R. v. A.M. [94] (supra) as providing guidance on how to evaluate them. In paragraph 13 of that decision the court stated

Inconsistencies vary in their nature and importance. Some are minor, others are not. Some concern material issues, others peripheral subjects. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which the trier of fact should be concerned: G. (M.), at p. 354 C.C.C.

[288] In the case at bar, even if some of the complainant’s inconsistencies were on collateral and arguably minor issues, the number of the inconsistencies is troubling because it portrays a witness who has trouble giving reliable testimony.

The complainant’s behaviour after the alleged assaults

[289] I am prohibited from using stereotypical or sexual assault myth based reasoning to judge how a complainant in a sexual assault case behaves or does not behave after the alleged assault took place.

[290] In this case, the lawyers asked the complainant to explain some of her behaviour after the alleged assaults. At times I found her answers in and of themselves concerning. This is different from judging the behaviour itself; it is evaluating the answers that she gave for the behaviour. This is not a distinction without a difference.

[291] For example, the Crown asked complainant why she returned to Mr. H.’s apartment after the alleged assault on November 4, 2018. I think that the gist of part of her explanation was that she wanted him to apologize to her for what he did. But as indicated above she did not stop there. She gave a long unresponsive answer. So, the Crown asked her again. She did not answer clearly so the Crown asked again. In her third try she seemed to say that she wanted to talk about the incident on November 4, 2018 and the incident in the bar just before they went to his apartment on November 9, 2018 when she gave him a hug and he kissed her.

[292] The manner in which she answered the question caused me concern regarding her ability to recall and recount what happened. This was not the only example of this type of testimony. She answered like this concerning the alleged offences and regarding other matters. Thus, I find that this affects the reliability of what she said concerning the alleged offences themselves as well as the other matters.

[293] I acknowledge that judging her on the act of returning to Mr. H.’s apartment would run afoul of the prohibition against myth-based and stereotypical-based reasoning. I am not doing that. My concern is with the way in which she answered the question because it revealed a confused mind, unable to focus on the questions that counsel asked her. I find that this spills over to her evidence about the alleged offences themselves.

[294] On another occasion, the Crown asked her why she told him in a text after the first incident that she missed him. She said that it occurred to her that he was not apologizing to her because he did not know the law of consent in Canada. Again, I do not judge her on the fact that she sent the text, but on what appears to me to be a bizarre answer. I found that her answer tested the limits of plausible testimony.

[295] Apparently, I was not the only one that found this answer curious because the Crown asked her if she understood the questions that were being put to her. As indicated above, I did not understand her response to this question.

[296] The complainant repeatedly accused Mr. H. of threatening to ruin her reputation. However, there is no evidence of this in the text messages. On the contrary, he seems quite smitten by her. Her explanation that all the threats were made during their telephone conversations is questionable. I find it hard to believe that he would threaten her over the phone and not say anything about it in the dozens of text messages that they sent back and forth to each other. It is quite convenient to say that the threats all occurred on the telephone because there is no record of their telephone conversations. This caused me to doubt her veracity.

[297] One time while defence counsel was cross-examining her on her statement to the police, she said that she did not know that the statement would be used in court. This gave me a concern that she felt that she would not be held accountable for what she told the police and therefore, could say what she pleased without fear of being questioned about it later.

[298] She testified that after the incident on November 9, 2018 she told Mr. H. that she did not want to take a shower. Defence counsel pointed out to her that she told the police that she and Mr. H. took a shower. Her explanation was that in Farsi there is only one word to say that one took a bath. That may be so, I don’t know, but she also said that she did not know the English word for tub.

[299] Considering that she attended university in Toronto and had been living in Canada for some time, and judging from the quality of her English exhibited in her testimony, although it was not that of a native speaker, I find it hard to believe that she would not know the word for tub. This is not necessarily a collateral issue that is separate from the alleged sexual assault. It occurred right afterwards. In any case, I do not judge her on whether she took a shower with Mr. H. after the alleged assault, I question her veracity in trying to discount that she told the police that they took a shower together afterwards. It is also a contradiction between her testimony and her statement to the police. This affects her credibility.

[300] She said that she corrected this with the police when she reviewed the statement, but there is no such correction in the statement. This made me doubt that she said anything to the police about it because they are expert interviewers and would surely include any corrections in the statement or in notes afterwards. There is no evidence that this occurred. Consequently, I do not believe her. This affects her credibility.

[301] The complainant tried to explain inconsistencies in her statement to the police in part by saying that she did not have an interpreter. In the officer’s preliminary remarks before she started her statement, the officer told her that if she wanted an interpreter, they would stop the statement process and get her one. She testified that she asked for an interpreter, but this is not reflected in the statement. I doubt the truthfulness of her answers about this. This is another instance in her testimony where I find that she appears to be evasive and careless with the truth.

[302] She testified that she told Mr. H. that she had just finished a relationship and wanted some time before starting a new one. But she also testified that she told him that she was dating someone. This is a contradiction that comes directly from her testimony. It affects her credibility.

[303] She said that she did not hold hands with Mr. H. when they were on the way to his apartment on November 9, 2018. Defence counsel showed her a picture of her holding his hand. She said that holding hands was not a big deal. It did not mean that the intended to have sex.

[304] The Crown submitted that she meant that she did not hold his hand all the time. This is not a convincing argument. I find her evidence is a transparent and untruthful effort to avoid the plain contradiction.

[305] Her evidence that she did not know how to get out of Mr. H.’s apartment building on November 9, 2018 is of questionable truthfulness. She had been there five days earlier. She agreed that it was the fourth time that she used the door that she used to leave the building. As explained above, I think that she knew more about how to get out of the building than she wanted to admit. Again, the issue is not that she was at his apartment building, it is that the truthfulness of her answers about it is highly suspect.

[306] Her evidence of how weak and unsteady on her feet she was after the second alleged assault was contradicted by the video of her walking in the lobby of the building without any difficulty. Her explanation of the video not showing her pain and that she was bleeding profusely did not weaken the contradiction.

[307] There are other, perhaps more minor examples of her manner of testifying that I could recount, but I think that these make the point sufficiently: her manner of testifying described above cause me great concern regarding her credibility and reliability concerning the alleged offences. I just do not trust her evidence.

[308] After I consider all the evidence, counsels’ submissions and the law, I find that the evidence of the Crown does not rise to the plateau of proof beyond a reasonable doubt. Therefore, I find Mr. H. not guilty of both charges.

[309] I thank both counsel for the tremendous amount of work that they did on the case to help me.

Released: July 5, 2021 Justice J. W. Bovard

Transcript References

[1] Transcript, February 24, 2021, Transcript, February 24, 2021, pages 59, 60 [2] Transcript, February 24, 2021, page 66, line 30 [3] Ibid., page 71, lines 15-16 [4] Ibid., page 73, lines 17-19 [5] Ibid., page 68, lines 11-12 [6] Ibid., page 70, lines 15-16 [7] Ibid., page 73, lines 25-29 [8] Transcript, February 24, 2021, page 75, line 21-23 [9] Ibid., page 75, lines 21-23 [10] Ibid., page 77, lines 12-17 [11] Ibid., lines, 19-28 [12] Transcript, February 24, 2021, page 78, lines 24-26 [13] Ibid., page 79, lines 10-11 [14] Ibid., page 80, lines 12-14 [15] Ibid., lines 20-21 [16] Transcript, February 24, 2021, page 84, lines 25-32 [17] Ibid., lines 14-22 [18] Transcript, March 26, 2021, page 5, lines 22-25 [19] Ibid., page 91, lines 13-15 [20] Ibid., page 86, lines 19-32; page 87, line 1 [21] Transcript, February 25, 2021, page 18, lines 18-27 [22] Ibid., page 19, lines 11-18 [23] Ibid., page 19, lines 30-31; page 20, line 1 [24] Transcript, February 25, 2021, page 20, lines 7-17 [25] Ibid., page 22, lines 30-32; page 23, lines 1-2 [26] Ibid., page 37, lines 28-29 [27] Transcript, February 25, 2021, page 37, lines 13-19 [28] Transcript, February 25, 2021, page 32, lines 19-30 [29] Ibid., page 33, lines 25-29 [30] Ibid., page 35, lines 1-11; 31-32 [31] Ibid., page 35, lines 31-32; page 36, lines 1-4 [32] Transcript, February 26, page 40, lines 20-22 [33] Transcript, March 23, 2021, page 30, lines 6-20 [34] Ibid., page 31, lines 13-14 [35] Transcript, March 23, 2021, page 31, lines 22-25 [36] Ibid., page 32, lines 7-11 [37] Transcript, March 23, 2021, page 32, lines 15-22 [38] Transcript, March 23, 2021, page 41, lines 24-26 [39] Ibid., page 42, lines 27-34; page 43, lines 1-2 [40] Transcript, March 23, 2021, page 43, lines 8-19 [41] Ibid., page 50, lines 15-34 [42] Ibid., page 52, lines 9-11 [43] Transcript, March 23, 2021, page 54, lines 31-34; page 55, lines 1-5 [44] Transcript, March 23, 2021, page 61, lines 16-21 [45] Transcript, March 23, 2021, page 73, lines 6-8 [46] Transcript, February 25, 2021, page 51, lines 15-21 [47] Ibid., lines 26-29 [48] Ibid., lines 31-32 [49] Ibid., page 52, lines 5-7 [50] Ibid., page 55, lines 2-3 [51] Ibid., lines 3-4 [52] Transcript, February 25, 2021, page 56, lines 20-23 [53] Ibid., lines 24-27 [54] Ibid., lines 28-32; page 57, lines 1 [55] Transcript, February 25, 2021, page 58, lines 15-24 [56] Ibid., page 59, lines 23-25 [57] Ibid., page 60, lines 3-5 [58] Ibid., lines 8-9 [59] Ibid., lines 19-20 [60] Ibid., lines 21-27 [61] Ibid., page 61, lines 3-6 [62] Ibid., lines 6-12 [63] Ibid., lines 22-24 [64] Transcript, February 25, 2021, page 16, lines 24-26 [65] Transcript, February 25, 2021, page 62, line 1 [66] Ibid., lines 2-7 [67] Ibid., page 66, lines 27-32 [68] Ibid., page 67, lines 19-20 [69] Ibid., lines 24-26 [70] Transcript, February 25, 2021, page 68, lines 10-32; page 69, lines 1-3 [71] Ibid., page 71, lines 7-10 [72] Ibid., page 76, lines 12-13 [73] Ibid., lines 14-24 [74] Transcript, February 25, 2021, page 76, lines 30-32; page 77, lines 1-2 [75] Transcript, February 26, 2021, page 11, lines 27-29 [76] Transcript, February 25, 2021, page 90, lines 14-28 [77] Transcript, May 11, 2021, page 17, lines 2-31; page 18, lines 1-4 [78] Transcript, May 11, 2021, page 36, lines 29-31 [79] Ibid., page 19, lines 29-30; page 20, line 1 [80] Ibid., page 25, lines 12-18 [81] Ibid., page 21, lines 25-31; page 22, lines 1-2 [82] Transcript, February 25, 2021, page 110, lines 21-32; page 111, lines 1-2 [83] Transcript, February 26, page 26, lines 15-16 [84] Transcript, February 26, page 21, lines 20-26 [85] Ibid., page 22, lines 8-12 [86] Transcript, February 26, page 17, lines 2-14 [87] Transcript, February 26, page 28, lines 2-17 [88] Ibid., page 79, lines 31-32 [89] Ibid., page 77, lines 31-32; page 78, lines1-2 [90] Ibid., page 78, lines 2-16 [91] Transcript, March 23, 2021, page 5, lines 31-34; page 6, lines 1-6 [92] 2018 ONSC 4823, paras. 79-80 [93] 2019 ONCA 90 [94] [2014] ONCA 769, para. 13 [95] [2010] ONCA 176, paras. 33-35 [96], [2006] O.J. No. 4749 [97] Transcript, May 13, 2021 page 10, lines 15-24 [98] [2019] ONCA 124.paras. 4, 7 [99] [2019] ONCA 938 [100] Transcript, May 13, 2021, page 62, lines 28-32; page 63, lines 1-2 [101] R. v. Shearing, 2002 SCC 58, para. 121 [102] R. v. A.R.J.D., 2018 SCC 6, [2018] 1 S.C.R. 218, at para. 2, aff'g 2017 ABCA 237, 55 Alta. L.R. (6th) 213 [103] 2018 ABCA 287, para. 6 [104] 2018 SCC 6, [2018] 1 S.C.R. 218 [105] 2021 ONCA 131 [106] Roth, at para. 129; R v. A.B.A., 2019 ONCA 124, 145 O.R. (3d) 634, at para. 5; Cepic, at para. 14. [107] R. v. A.R.D., 2017 ABCA 237, 422 D.L.R. (4th) 471, at paras. 6-7, aff’d 2018 SCC 6, [2018] 1 S.C.R. 218. [108] A.R.D., at paras. 57-58; A.B.A., at paras. 6, 8-10; R. v. Caesar, 2015 NWTCA 4, 588 A.R. 392, at para. 6. [109] Para. 73 [110] R. v. Krause, [1986] 2 S.C.R. 466, per McIntyre J. and Attorney-General v. Hitchcock (1847), 1 Ex. 91, 154 E.R. 38, at p. 42 per Pollock C.B.) [111] 2009 ONCA 56, para. 41